United States v. Zeljko Boskovic

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 28 2012

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 10-30336

Plaintiff - Appellee, D.C. No. 3:07-cr-00001-HA-1

v.
MEMORANDUM*
ZELJKO BOSKOVIC,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, Senior District Judge, Presiding

Argued and Submitted March 6, 2012
Portland, Oregon

Before: W. FLETCHER, FISHER and BYBEE, Circuit Judges.

Zeljko Boskovic appeals his convictions for possessing a green card

procured by means of material false statements and making material false

statements in a matter within the jurisdiction of the Department of Homeland

Security. See 18 U.S.C. §§ 1546(a), 1001(a). We affirm.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Motion to Suppress Statements as Involuntary.

Statements made to law enforcement officers are “involuntary” if,

“considering the totality of the circumstances, the government obtained the

statement[s] by physical or psychological coercion or by improper inducement so

that the suspect’s will was overborne.” United States v. Leon Guerrero, 847 F.2d

1363, 1366 (9th Cir. 1988). Based on the totality of the circumstances, the

government has shown by a preponderance of the evidence that the challenged

statements made to law enforcement officers were not involuntary. We affirm the

district court’s denial of Boskovic’s motion to suppress.

2. Motion to Exclude Statements Made Through Interpreter.

The Confrontation Clause prohibits admission of testimonial hearsay in

criminal cases unless the declarant is unavailable and the defendant has been

afforded a prior opportunity for cross-examination. See Crawford v. Washington,

541 U.S. 36, 68-69 (2004). Where an interpreter is a mere language conduit and

the statements are viewed as the defendant’s own, however, they do not constitute

inadmissible hearsay and their admission does not violate the Confrontation

Clause. See United States v. Nazemian, 948 F.2d 522, 525-28 (9th Cir. 1991).

Considering the factors set forth in Nazemian, the interpreter here acted only as a

language conduit. The statements were therefore directly attributable to Boskovic

2
and, as party admissions under Federal Rule of Evidence 801(d)(2), they were not

hearsay. Their admission did not violate the Confrontation Clause.

Even if the district court erred in admitting the statements, however, given

the cumulative nature of the challenged testimony and the additional evidence of

guilt, any error was harmless. See United States v. Orozco-Acosta, 607 F.3d 1156,

1161-62 (9th Cir. 2010).

3. Prosecutor’s Rebuttal Remarks.

Boskovic contends that the prosecutor’s rebuttal remarks were improper

because he vouched for the key witness and the government, and improperly

aroused the passions and prejudices of the jury by referring to a mass murderer (the

Son of Sam) and urging the jury to protect the reputation of the United States

refugee program. Because Boskovic did not object to the prosecutor’s statements

at trial, we review his claims for plain error. See United States v. Doss, 630 F.3d

1181, 1193 (9th Cir. 2011). We “reverse for plain error only if an error was

obvious, affected substantial rights, and a miscarriage of justice would otherwise

result.” Id. In most cases, the error must have “affected the outcome of the district

court proceedings.” United States v. Olano, 507 U.S. 725, 734 (1993).

a. Vouching. “Vouching consists of placing the prestige of the government

behind a witness through personal assurances of the witness’s veracity, or

3
suggesting that information not presented to the jury supports the witness’s

testimony.” United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993). The

prosecutor’s statement, “I put it to you that [Agent] Ted Weimann would rather

chew off his arm than lie,” although hyperbolic, did not rise to the level of

improper vouching when viewed in the context of the rebuttal and the trial as a

whole. See United States v. Wilkes, 662 F.3d 524, 540 (9th Cir. 2011)

(“[P]rosecutors are permitted to respond to defense counsel’s attempts to impeach

the credibility of government witnesses.”); United States v. Weatherspoon, 410

F.3d 1142, 1147 n.3 (9th Cir. 2005) (“In drawing the line between acceptable

statements . . . and unacceptable statements . . . , we have been especially sensitive

to the form of prosecutorial statements – so that use of the prefatory phrase ‘I

submit’ has been preferred to the use of ‘I think,’ in part because the latter is more

likely to lead the jury to give undue credit to the statement that follows . . . .”).

The prosecutor also referred in rebuttal to a withdrawn charge and said,

“There is plenty of evidence on the remaining theories in this case – ample

evidence.” Because this statement was made in response to defense counsel’s

reference in his own closing argument to the withdrawn charge, it did not

constitute improper vouching for the strength of the government’s case. See

Wilkes, 662 F.3d at 539 (prosecutor’s rebuttal explanation as to why the

4
government did not call a particular witness was “not improper” because it had

been “expressly invited” by defense counsel’s closing argument remarks

concerning that witness).

b. Passion and prejudice. Prosecutors may not make comments calculated

to arouse the passions or prejudices of the jury. See Weatherspoon, 410 F.3d at

1149. Nor may they call attention to a particular societal issue and ask the jury to

“make a statement.” Id. (quoting United States v. Leon-Reyes, 177 F.3d 816, 823

(9th Cir. 1999)) (internal quotation marks omitted). Here, in rebuttal, the

prosecutor drew a comparison between Boskovic’s case and the Son of Sam mass

murders in New York City:

Then we heard a string of character witnesses in this case, and I’m
going to date myself a bit here with a quick story, and then I am going
to sit down and let Judge Haggerty instruct you so you can have the case.
But I’m reminded of the mass murderer Son of Sam. I want to
make it clear that I’m not implying – I’m not drawing any analogy
between the defendant and the Son of Sam. But years ago when I was
a much younger man, there was a mass murder in New York City
committed by someone who the media dubbed the Son of Sam.
They were horrific murders. The media went around and
interviewed all of Son of Sam’s neighbors. They were stunned –
absolutely stunned that this man who was apparently a quiet, respectful,
law-abiding, truthful, whose dog wagged his tail when he came home at
night, who had absolutely no outer traffic being a mass murderer could
have committed these crimes. None of these character witnesses that
you heard were there when the defendant went through the refugee
process. I’ll leave it to you to decide how much weight to give their
testimony.

5
Boskovic contends that the statement was improper because the government had

introduced “irrelevant and prejudicial information about war crimes” during the

trial, and this final analogy left the jury with the idea that a parallel existed between

Boskovic and the Son of Sam, not just concerning the character witnesses, but also

concerning mass murder. The government responds that the statement was

permissible because the prosecutor stated, “I’m not drawing any analogy between

the defendant and the Son of Sam.” We disagree. The prosecutor’s “disclaimer”

was disingenuous. The choice of a mass murderer’s case appears calculated to raise

the war crimes specter in the jury’s mind, even though Boskovic was not charged

with any war crimes. At best, the analogy was gratuitous, ill-considered and

inflammatory. In a case that turned on the defendant’s character and credibility,

the analogy, invoked at the end of the government’s closing argument, appears

likely “designed to appeal to the passions, fears and vulnerabilities of the jury,”

which we have “consistently cautioned against.” Weatherspoon, 410 F.3d at 1149.

That said, given the curative instructions that followed, and the strength of the

government’s case otherwise, we cannot say this one ill-chosen argument was

sufficient to “affect[] substantial rights” or result in a “miscarriage of justice.”

Accordingly, there was no plain error. Doss, 630 F.3d at 1193.

6
The prosecutor also evoked the reputation of the United States refugee

program when asking the jury to return a guilty verdict. It is impermissible for “[a]

prosecutor [to] urge jurors to convict a criminal defendant in order to protect

community values, preserve civil order, or deter future law-breaking. . . . Jurors

may be persuaded by such appeals to believe that, by convicting a defendant, they

will assist in the solution of some pressing social problem.” Weatherspoon, 410

F.3d at 1149 (quoting United States v. Koon, 34 F.3d 1416, 1443 (9th Cir. 1994))

(internal quotation marks omitted). Even if the remarks were improper, however,

we conclude that they did not constitute plain error warranting reversal.

AFFIRMED.